Law of Persons LWPLA1-22 2024 PDF

Law of Persons LWPLA1-22 2024 Eduvos (Pty) Ltd (formerly Pearson Institute of Higher Education) is regis...

Law of Persons LWPLA1-22 2024 Eduvos (Pty) Ltd (formerly Pearson Institute of Higher Education) is registered w ith the Department of Higher Education and Training as a private higher education institution under the Higher Education Act, 101, of 1997. Registration Certificate number: 2001/HE07/008 EMANCIPATED MINOR Definition: An emancipated minor is a child who has been given consent by a parent or guardian to participate in commercial contracts independently. Limitations? Cannot marry without consent. Cannot sell immoveable property without consent. Scope of Emancipation The scope of emancipation depends on the situation. Determined by the guardian's specific consent.  EMANCIPATION Guardians' Consent: Examples: Emancipation must have Business-only emancipation: informed consent from Minor contracts unassisted guardians. only in business. Consent can be specific to General emancipation: Minor business or more general. can contract more freely (e.g., rent a flat, open accounts). Active guardians consent Sesing v Minister of Police (no consent) Guardian: Alcoholic mother, neglected child. Child's Situation: No home, self-subsistence from a young age. No Tacit Emancipation: Emancipation cannot result from neglect. Revocation of Emancipation Emancipation can be revoked by the guardian.  Factors in Proving Emancipation FACTORS PROVING Evidence Considered: Dickens v Daley Minor's employment and financial independence. Duration of employment. EMANCIPATION Living arrangements (with or away from parents). Relationship with parents. Age of the minor. Mr. Daley deemed an emancipated minor. Court's Considerations: Employment status and financial independence. Length of time away from parental control. Minor’s ability to handle personal affairs. Case Study: Emancipation Dianne is sixteen years old and a musical prodigy. For the last two years she has been playing the violin at theatres all over the world, and people queue for days to buy tickets for her concerts. Dianne’s parents live in Sandton and she stays with them when she is not on tour. Dianne has appointed an assistant to organise her private life and an agent to manage her career. Dianne’s parents are very happy about her success and trust her to make mature decisions regarding her life. Dianne is about to sign a R10 million recording contract with a well-known recording studio in America. Dianne informs Zap recording studio that she will be negotiating and signing the contract herself, since she is an emancipated minor. Questions for Discussion Does Dianne have the capacity to enter into the recording Capacity contract without her parents’ assistance if she is emancipated? Name two factors found in the above set of facts the court Factors will take into consideration to decide whether Diane is in fact an emancipated minor. If Dianne is an emancipated minor, who will be liable to Zap Liability Recording studio in terms of her contract with them? Discuss whether Dianne will have locus standi in iudicio if she is sued by Locus Standi Zap recording company for breach of contract  CLASS REP PRESENTATIONS -VOTING CLOSES THURSDAY AT 12PM VOTE FOR YOUR CLASS REP VOTE FOR YOUR DEPUTY CLASS REP CONTESTANTS JAMIE BONTLE LIYEMA NOTHILE SEX AND GENDER – STATUS AND CAPACITY WEEK 3 This Photo by Unknown Author is licensed under CC BY-NC-ND Week 3: Lesson 1 Sex and gender: status and capacity Learning Outcomes 1. What is the definition of sex and gender 2. Identify the impact of sex and gender on a person’s status and capacity. 3. What is covered under section 9 of the constitution? 4. Apply these rules to a relevant set of facts  CASE STUDY The Department of Sport, Arts and Culture (DSAC) has expressed that it stands in solidarity, with unwavering commitment, to seek justice for Caster Mokgadi Semenya as she is back in the Grand Chamber of the European Court of Human Rights in France. The court will reportedly consider whether the double Olympic champion must lower her testosterone levels in order to participate in competitions. “The department is committed to advocating for fairness and equality in sport. As the country celebrates 30 Years of Democracy, every athlete, regardless of their gender or physical attributes, should have the right to compete without facing unjust obstacles.“ The DSAC notes the hearing scheduled for Wednesday, 15 May 2024, where the Grand Chamber will evaluate the matter presented by the Swiss government in relation to the European Court of Human Rights’ July 2023 decision. Caster Semenya has endured years of unfair discrimination based on her gender. “The 2019 regulations imposed by the World Athletics body created significant challenges for athletes with Differences in Sex Development (DSD), who wish to compete in their chosen sport. This ruling reaffirmed the international legal requirement for World Athletics to refrain from engaging in discriminatory practices, barring exceptional circumstances,” the DSAC said. DISCUSS What determines whether one is male or female? How is your sex important to you generally or as a legal person? How is your sex and that of others important or relevant for dealing with others and the world at large in everyday transactions or interactions? Would your sex be important or relevant to you or others if you were competing in a sport, for example in athletics?  SEX VERSUS GENDER Eduvos (Pty) Ltd (formerly Pearson Institute of Higher Education) is registered w ith the Department of Higher Education and Training as a private higher education institution under the Higher Education Act, 101, of 1997. Registration Certificate number: 2001/HE07/008  Determining “sex” for legal purposes The Births and Deaths Registration Act, 1992 (Act No. 51 of 1992) read with the Identification Act, 1997 (Act No. 68 of 1997) provides for the rectification, amplification and amendment of the personal information of individuals as contained in the National Population Register of South Africa (NPR). Notice of birth – section 9 Parents must give notice to the DHA within 30 days of the child’s birth The sex of the child must be filled in on the prescribed form The sex of the child is entered into population register THE CONSTITUTION Section 9: Equality 1. Everyone is equal before the law and has the right to equal protection and benefit of the law. 2. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. 3. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. 4. No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. 5. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair. DISCTRIMINATION It is only constitutional to Rights are not absolute discriminate if this The rights in the Bill of Rights may be discrimination is “fair” limited by law of general application if it is reasonable and justifiable in an fair vs unfair discrimination? open and democratic society based on human dignity, equality and freedom. This means that the rights in the Bill of Rights are not absolute. When Does the Law Treat People Differently Because of Their Sex? Constitutional Post-Apartheid Progress Framework The Constitution of 1996 codifies non-discrimination principles, including sex BUT SEE… Traditional Recognition of Customary Marriages Act 120 of 1998 Customs and Legal Recognition Affirmative in the Employment Equity Act 55 of 1998 Action Policies Traditional Customs and Legal Recognition Recognition of Customary Marriages Act 120 of 1998 provides for the conclusion of polygamous marriages between one man and more than one women (polygyny). However, the South African law does not recognise the right of a woman to take more than one husband (polyandry). AFFIRMATIVE ACTION Week 3: Lesson 2 Sex and gender: status and capacity Learning Outcomes 1. What is transsexualism? 2. What is required for a person to change their sex legally? 3. What was the decision in the case of W v W? 4. What was the decision in the case of Simms v Simms? 5. Discuss section 27A of the Alteration of Sex Description Act. 6. Apply these rules to a relevant set of facts  TRANSSEXUALISM A rare congenital defect or anomaly whereby a person of male, or of female gender is born with the reproductive system and genitalia of the opposite sex. Also referred to as gender diaspora syndrome Woman trapped in a man's body and vice versa Different from a hermaphrodite (an inter-sexual) hermaphrodite = a person born with sexual organs of both sexes, one of which is usually predominant. Eduvos (Pty) Ltd (formerly Pearson Institute of Higher Education) is registered w ith the Department of Higher Education and Training as a private higher education institution under the Higher Education Act, 101, of 1997. Registration Certificate number: 2001/HE07/008 EXAMPLES  DEBATE - 1 Should one be allowed to change their own sex? Give arguments for and against sex change. Video: MINORS AND SEX CHANGE OPERATIONS https://www.youtube.com/watch?v=g0Zon08tsoE  DEBATE - 2 Should MINORS be allowed to change their own sex? Give good arguments for and against sex change in respect of MINORS. LEGAL POSITION ON CHANGING ONES SEX Sex change operations Medical procedures effecting gender realignment Common law = not recognised Historical background? 1950s – surgical procedures practiced in the West and in South Africa 1969 – 1975 out of 62 referred cases, 32 underwent sex change surgery at Groote Schuur Hospital, Cape Town sexual realignment operations were legal and after the operation, a sexually realigned person could apply to have his or her sex description altered on his or her birth certificate and on the population register. Case law W v W 1976 (2) SA 308 (W) Simms v Simms 1981 (4) SA 186 (D) Eduvos (Pty) Ltd (formerly Pearson Institute of Higher Education) is registered w ith the Department of Higher Education and Training as a private higher education institution under the Higher Education Act, 101, of 1997. Registration Certificate number: 2001/HE07/008  SEX CHANGE OPERATION: W V W Facts Issue: was the plaintiff a woman at the time of the marriage? Rule: Ormod test (test from the English case of Corbett v Corbett) - sexual constitution of a person is fixed at birth and cannot be changed by natural development of organs of the opposite sex, or by medical and surgical means. three biological factors, the chromosomal, the gonadal (ie the presence or absence of testes or ovaries) and the genital (including internal sex organs), if congruent, determine a person's sex. Application: Following the English case of Corbett v Corbett, the court held that a person who had undergone a sex change operation did not change her biological sex, and could not, therefore, marry someone of her original sex (irrespective of her physical appearance or gender role in society) as the operation had only artificially supplied the plaintiff with certain of the attributes of a woman, the operation did not change the plaintiff into a female Conclusion: court refused to accept the altered sex as the ‘’true sex’’ of the plaintiff SEX CHANGE OPERATION: SIMMS V SIMMS ❖husband called for an order declaring his marriage to the defendant to be null and void ❖it appeared that the defendant had originally been a male in every respect. As a result of a so-called "sex-change" operation defendant's genitalia had been altered so that she assumed some of the attributes of a female. She had always had and still had male chromosomes. ❖Marriage being the union of a man and a woman, two persons of the same sex cannot contract a valid marriage. It follows in my judgment that no valid marriage was contracted in this case.  Activity Having read the two cases of W v W and Simms v Simms and identify any points of criticism from the two cases. Feedback on Activity 1… POINTS OF CRITICISIM? Ormod criteria has restrictions Has purely biological criteria Biological criteria alone = not absolute Psychological aspects? Plaintiff failed to call expert evidence = plaintiff unable to establish proof of her new sex They made it impossible for transsexuals to legally change their sex. This caused extreme difficulties for transsexuals, such as being accused of fraud. Judge failed to hand down a humane, equitable and progressive judgement  POINTS OF CRITICISIM CONTINUED… Constitutional implications? ✓ Right to privacy ✓ Right to dignity denial of legal recognition of a change of sex = Discrimination based on one's sexual orientation  EFFECT OF THE TWO CASES Births, Marriages and Deaths Registration Act, 81 of 1963 was repealed Section 7B of the Act - N/A entire Act has been repealed and replaced by the Births and Deaths Registration Act 51 of 1992. The law under the case of W v W and Simms v Simms is no longer applicable Current position: a person whose sex description has been altered is deemed for all purposes to be a person of the sex description so altered as from the date of the recording of such alteration ALTERATION OF SEX DESCRIPTION AND SEX STATUS ACT 49 OF 2003. Purpose of the Act Section 2 (1) Any person whose sexual characteristics have been altered by surgical or To provide for the alteration of the medical treatment or by evolvement through sex description of certain individuals in certain circumstances; and to natural development resulting in gender amend the Births and Deaths reassignment, or any person who is intersexed Registration Act, 1992. may apply to the Director-General of the National Department of Home Affairs for the alteration of the sex description on his or her birth register. Once the person’s sex description has been so altered on the birth such a person will now be entitled to register, he or she is deemed for all enter into a valid marriage with a person purposes to be a member of his or of his or her former sex. her new sex. ALTERATION OF SEX DESCRIPTION AND SEX STATUS ACT 49 OF 2003. ALTERATION OF SEX DESCRIPTION AND SEX STATUS ACT – NADIA SWANEPOELS CASE Is it mandatory for one to undergo genital surgery? https://youtu.be/5tVp8WMicus  Questions 1. What is the difference between sex and gender? 2. What issues may arise from the case of W v W? 3. What are the legal consequences of sex change? 4. What is the Ormrod test? 5. How has the law regarding sex change developed? Explain with reference to the relevant case law and legislation. 6. How did the court in W v W define a person’s sex for legal purposes? TRUE OR FALSE 1. Sex and Gender are defined differently? 2. Historically, sexual realignment surgery was prohibited? 3. In the case of W v W, the court accepted the plaintiff's new sex as her true sex?